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The Law Commission was set up by the Law Commissions Act 1965. It is made up of five full time commissioners. The chairman is either a High Court judge or an Appeal Court judge and is appointed for a period of up to three years. His is the public face of the Law Commission and he will represent the views of the other commissioners to government. He will also take the lead with regard to specific law reform undertakings and be responsible for the supervision of the consolidation of the Commission. The remaining four Commissioners are appointed from judges, barristers, solicitors or law tutors. Their appointment will be for a period of five years. The four teams each headed by its own commissioner are, Property, Family and Trust Law, Commercial and Common Law, Criminal Law and Evidence, and Public Law.
To support the chairman and the four commissioners are a team of around 20 members of the Government Legal Service headed by a Chief Executive, two Parliamentary Counsel and a team of research assistants. The two Parliamentary Counsel draft the Bills to reform and consolidate the law. The research assistants are recruited from law graduates each year for a 12 month period. They work alongside the Commissioners taking part in discussions and doing much of the research on relevant projects.
The role of the Law Commission is to systematically keep the law under review; to codify and consolidate areas of the law; to receive proposals for law reform for consideration and consult with interested parties in order to make suggestions to government for law reform. Before 1965 there were various committees set up which looked at the laws to see which laws might, for example, be obsolete, not cost-effective or too complex. We will look at how the Commission carries out these functions in more detail.
The Commission keeps the law under review and considers the need for reform to ensure, in the words of the Commission, that the law is 'as fair, modern, simple and as cost-effective as possible.' It is an independent body created by Parliament to help them keep the law up to date by making recommendations when this is considered necessary. The Commission is tasked with making the law easier to find and use by both practitioners and members of the public. It does this by codifying the law in certain areas. The intention is to bring together all the relevant statutes on a given topic or area of the law and incorporate them in one modern Act. The result being that the law can be found in one place. The problem that can otherwise arise is that the law develops, over a period of time, through what might be numerous amending Acts, and consequently finding the law and making sense of it can be both tedious and difficult.
The Commission started out with very ambitious plans for embarking upon a programme of codification. They had plans which included family law, the law of evidence and landlord and tenant law. The Commission realised that it had probably bitten off more than it could chew and eventually settled for a more practical 'building-block' approach. This was aimed at codifying much smaller chunks of law.
The Commission has had some success with the consolidation of areas of the law. Consolidation is less rigid than codification and brings together all the law in one place to replace what might otherwise have been covered in a number of Acts. In recent years some progress has been made in the area of sentencing and this has been the subject of numerous amendment Acts. Even so, things do not stand still, and despite this consolidation by the Commission, the Criminal Justice Act 2003 made far reaching changes to the sentencing powers and options of the criminal courts.
At present the Commission has been working with the Charities Commission to consolidate charity legislation and has now produced a Charities Bill for consideration by Parliament. This is another example of a consolidating Bill.
As law students we have all heard stories and accounts of ridiculous statutes which are still on the statute books. Whether these accounts are true or not is difficult to say but in any event the statutes may be repealed and done away with. The public have recently been invited by the Deputy Prime Minister Nick Clegg, when he launched a Your Freedom website, to nominate unnecessary laws and excessive regulations which they would like to see repealed.
The Law Commission can do away with such out of date and irrelevant provisions with a Statute Law (Repeals) Bill which it can recommend to Parliament from time to time. Such measures prevent the law from falling into disrepute and cluttering up the statute books with redundant legislation which only serves to cause confusion.
As well as keeping the law under review, the Commission may consider and put forward proposals for reform. An example of where this has worked successfully can be found in the law of murder. Due to advances in medicine and technology the government took the view that the old 'year and a day rule', which meant it needed to be proved that the victim died within a year and a day of the incident, should be repealed. The Commission duly reported and produced a draft Bill to revise the law of murder and do away with the old rule.
In undertaking its role the Commission has embraced the idea that there should be appropriate consultation with interested parties and this has become accepted practice. Consultation is seen as a benefit as it can lead to better practical ideas for reform and therefore better quality legislation which is workable and in many cases welcomed. The Dangerous Dogs Act, introduced in the nineties, is still seen as an example of what can happen if a Bill is prepared quickly and without proper consultation. It is because of the lack of consultation with the appropriate people that we still have dangerous dogs on our streets and read of incidents regarding the harm they have caused. It has left ambiguity and made it difficult to police.
The Law Commission has continued in its work and is widely respected. The Commission has had a large number of its proposals accepted by Parliament. In fact, in the first two years of its existence, some twenty proposals were successful in that they later became enacted. Such successes included the Unfair Contract Terms Act 1977, the Criminal Attempts Act 1981 and the Supply of Goods and Services Act 1982.
It is noticeable that these successes occurred in the early years after the Commission had been set up. Later the number of proposals to be taken up by Parliament was to drop dramatically. In fact something like 85% of its recommendations were enacted in the early years but this has decreased. Around 70% of the Commissions recommendations have been accepted in whole or in part. Many argue that this was due to a lack of Parliamentary time and a lack of political will to tackle law reform.
Finally it should be remembered that there have been some failures. The Draft Criminal Code is probably widely accepted as being the clearest example of an area of the law where the Commission did not achieve its ambitions. The Draft Criminal code was introduced as long ago as 1989 but this, in the Commissions own words was, 'in many respects a statement of the existing law or of fairly recent proposals for reform which were open to criticism. Accordingly, we subsequently adopted a policy of reviewing areas of criminal law so that one by one they would be modernised (where appropriate) before being assembled into a code.' The Commission's work is ongoing and has yet to receive the attention of Parliament.
Amongst the measures not taken up by Parliament is the infamous Offences Against the Person Act 1861. Many judges and practitioners would like to see this receive an overhaul not least because of the old fashioned language used in it. The use of such terms as 'actual', 'occasioning' and 'grievous' have, over the years, added to the time taken to deal with such cases, as every one from police officers to the judiciary have all grappled with its wording. The main problem being that the language used is not in use on a day to day basis and badly needs up dating.
There have been major changes in recent years to try to speed up the procedure for the consideration of politically non-controversial recommendations from the Law Commission. The House of Lords are now able to decide to take the Second Reading of such Law Commission Bills off the floor of the House. If all parties agree, evidence can be taken at Committee Stage and any amendments can be made. Then at the Third Reading it should be possible for the Bill to be implemented, making its progress much quicker and leaving the floor of the House of Lords free to carry on with other business. This is particularly aimed at the more technical and politically non-controversial Bills. The first Bill to be scrutinised like this was the Perpetuities and Accumulations Bill, based on the Commission’s 1998 Report and which was introduced in the House of Lords on 1 April 2009.
The Law Commission Act 2009 has also taken steps to speed up procedures and this includes an annual report which the Lord Chancellor must prepare for Parliament detailing the Law Commission proposals implemented during the year, those not implemented as at the end of that year and any plans for dealing with any of those proposals. The report must include any decision not to implement any of the proposals and why they decided against implementing them.
The Law Commission Act 2009 also set out a protocol regarding the working relationship between the Law Commission governing how Government departments and the Law Commission should work together on law reform projects. The protocol is intended to increase the number of Law Commission proposals implemented by Government and to reduce the time to go forward with reform.
It remains an issue that Parliament is under no obligation to adopt the Commission's recommendations but the reforms have made Parliament more accountable. The Law Commission can only make recommendations it is then up to the government to enact them.
It is also worth remembering that the government can not tell the Law Commission to take on a project but they can only take on one that has been approved by the Lord Chancellor.
(Word Count 1759)
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